The 2012 guilty verdict issued by the International Criminal Court (ICC) in the Thomas Lubanga Dyilo case (1) has brought significant attention to the issue of child soldiering. Yet, despite global attempts to criminalize child soldier recruitment, armed groups' willingness to capitalize on children's inherent vulnerabilities and the proliferation of small arms have resulted in the continued use of large numbers of both boys and girls in armed conflict today. (2) These youths suffer physical injury and psychological trauma. (3) After the fighting has finished, they face further challenges reintegrating into civilian life. (4) Girl soldiers in particular frequently experience reproductive health problems and gender-specific stigmatization. (5) Yet, until recently, post-conflict justice mechanisms designed to address suffering and help populations transition have systematically failed to address the needs of both women and children, in particular the needs of girl soldiers. Even among programs initiated to reintegrate and rehabilitate child soldiers, very few have focused on girls, (6) and some have even excluded them from the process. (7) This Article will explore one of the main pillars of transitional justice, namely reparations, within this context. (8) Specifically, it will address how to more effectively realize the right to reparations for girl soldiers. December 2011 witnessed the world's first reparations judgment on the basis of unlawful child soldier recruitment, according to which Colombian paramilitary leader Fredy Rendon Herrera was sentenced and ordered to pay compensation for the illegal recruitment of minors, including girls. (9) Following the March 2012 verdict in the Lubanga case--unless the conviction is overturned on appeal--we will now have the privilege to witness the ICC's first judicial reparations procedures unfold, even if the implementation of these reparations remains some time away. (10)
These initial steps towards securing victims' redress in the child soldier context are significant. How these decisions can best be implemented and how we might better secure these same rights for a more globally comprehensive set of victims--in particular, through a child-sensitive and gendered approach--is the focus of this Article.
In analyzing these issues, this Article will reflect on the experiences of existing reparations programs and relevant court cases. It will, furthermore, draw upon reports of non-governmental organizations (NGOs), academic literature, and two of this author's own experiences in the field of reparations: first, as a lawyer representing Eritrea before the Eritrea-Ethiopia Claims Commission (EECC), and, second, as United Nations (UN) Legal Officer appearing before the Kosovo Property Claims Commission (KPCC).
Part I will trace the history of the right to reparations and how it has evolved within the larger transitional justice movement. Part II will then address the challenges involved in providing reparations in the girl soldier context, before, in Part III, positing solutions and frameworks for addressing these concerns, using a child-sensitive and gendered approach. Finally, Part IV of this Article will critically assess how developments in the Lubanga case are dealing with these same issues, highlighting achievements and challenging the majority presumption that broad, holistic, community-based packages are the best option for providing reparations in this case.
Reparations originated primarily as an attempt by ancient leaders to secure justice for victims as an alternative to vigilantism, allowing victims and perpetrators to settle wrongs while maintaining legal order." Early examples of legal reparations schemes are evidenced in the Code of Hammurabi, the Assyrian Code, and provisions of Hittite Laws, which included both detailed compensation schemes and corporal punishments presumably meant to satisfy victims' desires for revenge. (12) Significantly, the Code of Hammurabi even provided for public reparations in cases where the perpetrator could not be found. (13) Other detailed reparations schemes can be found in early Roman Laws, based on a legal positivist approach, emphasizing rule of law over any moral justification. (14)
Over time, however, there was a shift away from victim-centric justice toward statefocused (15) retributive justice. (16) This trend commenced in the Middle Ages and marked the start of the "gradual alienation]" of the victim. (17) Reclassified as "crimes against the King's peace," this notion of states' primary interest in public order--and more or less victims' irrelevance--eventually spread across most of northern Europe and has lasted in varying degrees in Western criminal justice systems, particularly in common law systems, until modern times. (18)
Yet, beginning in the mid-twentieth century, there has been an increasing shift in focus back to the victim. (19) The modern resurgence is attributed to factors such as the expanded notions of humanism originating from the Enlightenment, the recognition of mass human suffering caused during the World Wars, the subsequent rise in international human rights law, and the creation of the relatively new field of victimology, during the 1960s-80s, in economically affluent nations. (20)
Notably, this growing recognition of the rights of the harmed individual corresponds to the rise of international justice, where the theory of "crimes against the King's peace"--originally employed to disempower these individuals--is rendered less relevant. Indeed, at the international level, reparations arose as an inter-state obligation justified under humanitarian law to redress wrongs between nations. (21) In tandem with the growing prominence of human rights law, however, there became a gradual recognition that the rights of individuals included the right to claim reparations, even at the international level. The Rome Statute of the ICC ("Rome Statute"), which entered into force in 2002, enshrined the right of victims to seek reparations before the first permanent international criminal court, (22) and, in 2004, the International Court of Justice (ICJ) confirmed victims' right to reparations against a state. (23) Yet, while this right has been recognized, its realization is more problematic, and "[t]he content of the obligation to provide reparations to the individual whose rights have been violated remains ... far from clear." (24) This is particularly true in the transitional justice context, with respect to "gross violations of international human rights law" and "serious violations of international humanitarian law" committed on an often massive scale. (25)
Reparations in the Transitional Justice Context
Transitional justice refers to "the set of measures implemented in various countries to deal with the legacies of massive human rights abuses." (26) Under this rubric, reparations are one of the main tools, along with criminal trials, truth commissions, and institutional vetting. (27) Referencing numerous international instruments, regional conventions, UN declarations, and the Rome Statute, the UN General Assembly's 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ("Basic Principles") summarizes the international customary law of reparations in this context. (28)
According to the Basic Principles, the form of reparation measures can be diverse, falling into one or more of the following five categories: "restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition." (29) Restitution is, by definition, a remedy designed to "restore the victim to the original situation." (30) Compensation is an often monetary remedy delivered to a victim for damages that are "economically assessable." (31) Rehabilitation "include[s] medical and psychological care as well as legal and social services." (32) Satisfaction covers a wide range of remedies, including memorials, apologies, judgments, investigations, and declarations. (33) Finally, guarantees of non-repetition include measures such as institutional reform, vetting, and human rights training for government officials. (34)
While there is no shortage of options regarding the form reparations may take, and while there also exists a steadily growing body of case studies that one might analyze, "a coherent theory and practice for remedies for victims of human rights violations does not yet exist under international law." (35) Both Research Director at the International Center for Transitional Justice (ICTJ), Pablo de Greiff, (36) in 2006, and remedies scholar and Deputy Director at the Praxis Institute for Social Justice, Lisa Laplante, in 2007, have lamented at the "relative paucity of academic writing and 'sufficient systematic attention' to this legal principle." (37)
Taking on this challenge, de Greiff, similar to the ancient rulers, urges the benefits of reparations as part of a "political project" designed to secure, this time, the post-transition governmental order. De Greiff advances the...